Censorship, privacy, and social media in Peru

Lucía León is Public Policy Coordinator at Hiperderecho, a Peruvian civil society organization working on digital rights and liberties. Lucía’s work is focused on monitoring emerging public policies that aim to regulate our digital lives. 

The foundations of digital democracy and an open Internet are built on a strong framework of respect for human rights. Abusive practices that use technology—or legislation— as a tool for control and surveillance are directly affecting digital rights. This poses a great danger to digital citizenship, putting the entire democratic system at risk. Although it may seem a situation typical of dictatorial regimes, citizens of “democratic” countries are also being jeopardized by this type of practice. In the case of Peru, for example, an environment of disinformation, surveillance, and censorship is growing.

Currently, several laws and bills affect the Peruvian digital ecosystem. Last year, for example, a law was passed in Congress that expands the cases in which the Peruvian National Police can request the geolocation of someone from telecommunications companies without a prior court order. Also, from the beginning of the pandemic up until just over a month ago, any person entering Peru was required to authorize their cell phone geolocation, without knowing who will be in charge of it and until when. Another huge threat is the General Internet Bill: a very broad proposal that addresses different issues in a single text. One consequence of this is that some provisions are going unnoticed, such as the exceptional power of the State to authorize or mandate Internet shutdowns.

As can be seen, some legislators and policy-makers do not seem to be very committed to fostering the growth of civic space. Although they frequently resort to using words such as “rule of law” and “democratic society” in speeches and explanatory statements, some proposals they make raise doubts as to what content they are giving to these terms and precisely what value they are placing on the foundations of democracy. Although in Peru the discussion on “technosolutionism” or “digital authoritarianism” is not mature, the fact is that certain policies implemented, as well as several proposed bills, in practice, seek to use technology to restrict freedoms and civil rights, undermining, precisely, the foundations of the democracy they claim to defend.

The desire to  place restrictions to freedom of expression has awakened in Peruvian politicians and legislators. This is a particularly sensitive right for the construction of a plural and deliberative democracy, which allows the proliferation and free circulation of ideas and expressions of all kinds. Its relevance has been recognized worldwide, so much so that there are special mandates on freedom of opinion and expression in all international human rights systems. However, despite the need for citizens—and human need, in fact—to express themselves and exercise other rights through free expression, different parliamentary groups have sought, precisely, to create regulations that imply a restriction to freedom of expression, motivated by a scenario of strong political polarization (reproduced by the media) in the country.

During a previous parliamentary period in February 2021, a Bill was presented which sought to regulate the “improper use of technological means in telecommunications such as social media and applications”. This proposal was based on a very restrictive standard of freedom of expression, since it established as a principle that the contents published in social media by any person must be truthful, complete, accurate, updated, verifiable and understandable. In addition, it proposed alarming prohibitions, among which were to publish any type of information, photos or videos of a person without their express or written consent, which is impractical for legitimate or non-harmful uses, including investigative journalistic work. The Bill also sought to prohibit people from “exposing” their own sensitive or intimate information on social networks and to prohibit behaviors impossible to supervise without violating the privacy of searches on a massive scale. For example, it sanctioned the free and gratuitous downloading of contents protected by copyright (ignoring that they could be freely accessible) or the access to “inappropriate” or illegal contents.

The Bill also proposed that the Executive Branch, through the corresponding entities, sign agreements with the social media platforms operating in the national territory (Facebook, Twitter, YouTube, Google, etc.) so that they assume the responsibility of implementing mechanisms to suspend illegal or “undesirable” content. On this point, the proposal departs, once again, from the existing national and international standards on the matter: the Office of the Special Rapporteur for Freedom of Expression of the Organization of American States has already pointed out that “States should promote the adoption of regimes that allow intermediaries to function as true promoters of freedom of expression”. On the other hand, these kinds of provisions may encourage private parties —in this case, Internet platforms— to censor speeches that, although they may be controversial or offensive, do not contravene the law, to avoid the imputation of responsibility proposed here. 

Finally, the Bill culminates by seeking to modify the current criminal offense of defamation, so that it expressly includes statements made through social networks. In fact, in this regard, it is not a solitary initiative. Between 2021 and 2022, nine initiatives aimed at modifying the crime of defamation have been presented, several of which aimed at making defamation through social networks an aggravating circumstance with a higher penalty. Coming from different benches, the presentation of these Bills shows that there is a political consensus in tightening the criminal regulation of defamation, which could also be related to the migration of political campaigns to the digital sphere and the increased use of social networks by Peruvians. 

The intentions to obstruct journalism and public interest research are clear (for example, a bill from 2009 stipulated that the criminal offense of defamation would include “digital journalism through the Internet”). However, these attempts at censorship do not need the approval of these Bills, because they instrumentalize the regulations that already exist. For example, in 2016, a supreme judge denounced an independent digital journalism media, Ojo Público, for publishing an interview that he himself gave, under the protection of personal data legislation. This regulation, whose intention is to provide tools to citizens so that they can reappropriate the power of decision over their data, has been alleged on more than one occasion to prevent the press media from reporting information of public relevance, since they consider that, by mentioning or publishing photographs of a person without their authorization (precisely, one of the prohibitions proposed in the aforementioned Bill) as part of the journalistic work, “processing of personal data without consent” is being carried out. 

In a similar sense, last year, a citizen sought to rely on constitutional law to file a habeas data lawsuit against the same media, requesting that they remove and stop publishing content alluding to the plaintiff in any medium, with special emphasis on its website. According to his allegations, his right to personal privacy, honor and reputation were being violated, as he was involved in drug trafficking and money laundering in such journalistic articles. Although, fortunately, the Constitutional Court found that there was no infringement of the rights invoked, since the publication of facts of public knowledge and/or criminal investigation, it is worrying that the digital media are exposed to be constantly denounced or sued for the publication of information relevant to the public interest.

In this crusade against privacy and freedom of expression, there are several actors (from politicians to investigated people, including legislators) who use their political power or whimsical interpretations of existing regulations to reduce the scope of one of the foundations of today’s democracies: the freedom to think, say and inform. The General Internet Bill or the Social Media Misuse Bill are just examples of this. Although in recent years we are more attentive to the ways in which technology can be used to monitor and control, I think it is still worth paying attention to other types of rules or interpretations: those that seek to remove us from the digital environment and distance us, in one way or another, from the potential of technology. In doing so, civic space is also seriously affected. The only way for citizens to fight against this loss is to continue to use the Internet regularly as our space of resistance.